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Badri Narayan Sharma Vs. Panchayat Samiti, Dhariawad - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 539 of 1971
Judge
Reported inAIR1973Raj29; 1972()WLN445
ActsLimitation Act, 1963 - Sections 5 - Schedule - Article 123; Code of Civil Procedure (CPC) , 1908 - Sections 151 - Order 9, Rule 13
AppellantBadri Narayan Sharma
RespondentPanchayat Samiti, Dhariawad
Appellant Advocate R.L. Purohit, Adv.
Respondent Advocate M.L. Shrimal, Adv.
DispositionApplication allowed
Cases ReferredMagraj v. Harnarain
Excerpt:
civil procedure code - section 151 and limitation act, 1963--art. 123--word 'summons' refers to first summons to be served on defendant--court cannot exercise inherent powers to override provisions of the limitation act.;the consensus of the judicial opinion is that the 'summons' referred to in third column of article 123 refers to the summons to be served on the defendant for the first hearing of the suit, namely, the first summons nerved in the suit for settlement of issues. it has also been held that the inherent power of the court under section 151, c.p.c. cannot be exercised to override the provisions of the limitation act. - .....is a revision application by the plaintiff against an order of munsif, kanore, setting aside an ex parte decree passed in his favour on 17-12-1970. 2. the relevant facts are these. badri narayan, petitioner-plaintiff, filed a suit against panchayat samiti, dhariawad, valued at rs. 2,822/- in the court of civil judge, udaipur. the pecuniary jurisdiction of munsifs at that time extended only up to rs. 2,000/-. summons was duly served on the defendant, issues were framed and the evidence of the plaintiff was recorded in part on 17-4-1970 by the learned civil judge. both the parties were present in his court on that date and the case was adjourned to 6-8-1970 for completing the statement of badri narayan and for recording the evidence of his remaining witnesses. 3. before 6-8-1970 the.....
Judgment:
ORDER

Jagat Narayan, C.J.

1. This is a revision application by the plaintiff against an order of Munsif, Kanore, setting aside an ex parte decree passed in his favour on 17-12-1970.

2. The relevant facts are these. Badri Narayan, petitioner-plaintiff, filed a suit against Panchayat Samiti, Dhariawad, valued at Rs. 2,822/- in the Court of Civil Judge, Udaipur. The pecuniary jurisdiction of Munsifs at that time extended only up to Rs. 2,000/-. Summons was duly served on the defendant, issues were framed and the evidence of the plaintiff was recorded in part on 17-4-1970 by the learned Civil Judge. Both the parties were present in his Court on that date and the case was adjourned to 6-8-1970 for completing the statement of Badri Narayan and for recording the evidence of his remaining witnesses.

3. Before 6-8-1970 the pecuniary jurisdiction of Munsif was extended to Rs. 5,000/- and this suit was accordingly transferred to the Court of Munsif, Kanore, by an order of the District Judge, Udaipur, dated 6-7-1970. This order was recorded on the order-sheet of the file of the learned Civil Judge and the file was sent to the Court of Munsif, Kanore.

4. The file was put up before Munsif. Kanore. on 26-8-1970 and on that date he fixed 3-11-1970 for further hearing of the suit and directed that notices be issued to the parties. The notice was duly served on the plaintiff and he appeared in the Court of Munsif Kanore, on 3-11-1970. The notice for the defendant was issued in the name of the Vikas Adhikari, the defendant being the Panchayat Samiti. It was accepted by the despatch clerk of the Panchayat Samiti, who signed on the back of the notice on 24-9-1970 in token of having received it. On 3-11-1970, however, the Panchayat Samiti did not appear before the learned Munsif. Ex parte evidence was recorded on 9-12-1970 and an ex parte decree was passed on 17-12-1970, against the Panchayat Samiti.

5. The present application for setting aside the ex parte decree was filed by the Panchayat Samiti on 24th March, 1971. It was opposed by the plaintiff inter alia on the ground that it was barred by limitation under Article 123 of the new Limitation Act. which corresponds to Article 164 of the old Limitation Act, Article 123 runs as follows:--

'123.To set aside a decree passed ex parte or to rehear an appeal decreed or heard ex parte. Explanation.- For the purpose of this article, substituted service under Rule 20 of Order V of the Code of Civil Procedure, 1908 shall not be deemed to be due service.Thirty days. The date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree.'

6 The learned Munsif was of the opinion that when the case was transferred to the Court of Munsif. Kanore, it was necessary for him to serve a fresh summons on the defendant. The learned Munsif did not issue any fresh summons, but only issued a notice informing about the next date of hearing. In this notice the name of the defendant was shown as Vikas Adhikari. The name of the plaintiff was correctly shown. The object of the suit, the relief claimed and its Valuation were also correctly shown. For the sole reason that the defendant was shown as Vikas Adhikari the learnedMunsif held that this summons was not duly served on the defendant. He, therefore, held that limitation under Article 123, began to run from the date of knowledge. As knowledge is a question of fact, he fixed a date for recording the evidence of the parties on this question.

7. On the next date, however, he held that as no summons was issued for the defendant the question of knowledge did not arise and he set aside the ex parte decree purporting to act under Section 151, Civil P. C.

8. I have heard the learned counsel for the parties at length and I amsatisfied that the order of the learned Munsif is erroneous. The consensus of the judicial opinion is that the 'summons' referred to in third column of Article 123 refers to the summons to be served on the defendant for the first hearing of the suit, namely, the first summons served in the suit for settlement of issues. It has also been held that the inherent power of the Court under Section 151, Civil P. C., cannot be exercised to override the provisions of the Limitation Act.

9. In Ranglal v. Munjaji, AIR 1956 Hyd 29 it was held that-

'The 'Summons' in Article 164 means summons for the first hearing. If that has been duly served the period will commence from the date of the decree regardless of the fact whether the notice of transfer was duly served or not.'

10. The decisions in Hamir Kaur v. Court of Wards of the Estate of Sardar Balwant Singh, AIR 1932 Lah 538 and Sodhi Harnam Singh v. Sodai Mohinder Singh, AIR 1954 Punj 137 were relied upon. In the Hyderabad case AIR 1956 Hyd 29 it was held that Section 5 of the Limitation Act was not applicable to an application for setting aside an ex parte decree. The Limitation Act was amended in 1963 and the amended Section 5 of the Act of 1963 is applicable to such an application also. In the same case it was decided that the court cannot by exercise of its inherent power extend the period of limitation on anv grounds of equity and justice and override the provisions of Limitation Act. In Sodhi Harnam Singh v. Sodai Mohinder Sinsh, AIR 1954 Punj 137 it was held that.-

'The wording of Article 164 refers to summons issued in the first instance and not to notices issued to parties subsequently whether such notices are necessary under law or not.

'Where the defendant has received the summons of the first hearing or where he has been directed to appear before the transferee Court on a certain date bv the transferring Court, the limitation under Article 164. to set aside ex parte decree starts from the date of the decree.'

Further it was observed that-

'Where the intention of the legislature as expressed in the statute is clear, the Court must sive effect to it even though there is lacuna. It is not the function of the Court to add to the law. It must confine itself to interpreting the law as it exists'.

11. As has been pointed out by me above the amended Section 5 of the Limitation Act is now applicable to applications for setting aside ex parte decrees and relief can be granted in genuine case of hardship where the defendant has been reasonably vigilant.

12. In Mahendralal Barooah v. Ramprasad, AIR 1961 Assam 80 a learned Single Judge held that,--

'The summons which is referred to in Article 164 is the summons in the suit itself. Where the summons was duly served and the defendant appeared on the date of hearing of the suit but the matter remained pending and when after the lapse of two years the case was ordered to be put up for hearing fresh summons was not issued to the defendant and the suit was decreed ex parte, it cannot be said that the summons was not duly served within meaning of Column 3 of Article 164 and hence, the Starting point of limitation for setting aside the ex parte decree would be the date of the decree and not when the defendant had the knowledge of the decree'.

13. In Tara Chand v. Ram Chand, AIR 1935 Pesh 7 it was held that,--

'The summons referred to in Article 164 is the summons for the first hearing of the case, and there is no essential difference between the case where a suit is adjourned owing to the absence of the presiding officer or some other cause and a case in which a suit remanded for retrial by the appellate Court. The underlying principle in such cases is that where the existence of the suit has been brought to the notice of the defendants by due service of a summons on them, it is their duty thereafter to inform themselves of what is being done in the case'.

14. A contrary view was taken by a learned Single Judge of the Allahabad High Court in Gordhan Ram v. Banarsi Ram, AIR 1957 All 805. With all respect I am unable to agree with that view. There is overwhelming authority to the contrary.

15. My attention has been drawn to a decision of a learned Single Judge of this Court in Magraj v. Harnarain, AIR 1951 Raj 47 in which it was held as follows:--

'Where the appellant had no notice of the date of hearing, the dismissal of the appeal for default is not an order passed under Order 41. Rule 17 and, therefore, the provision of Order 41, Rule 19 or Article 168. Limitation Act, does not come into play, and the restoration of the appeal can be done in exercise of the powers under Section 151 of the Code'.

16. With all respect I am unable to subscribe with the view taken in this decision on account of overwhelming authorities to the contrary.

17. As summons in this case was duly served on the Panchayat Samiti when the suit was proceeding in the Court of Civil Judge, Udaipur, the case falls under the first portion of column 3 of Article 123 of the Limitation Act andtime begins to run from the date of the decree and not from the date of knowledge of the decree. The application for setting aside the decree was barred by limitation. Further the Court has no power to set aside the ex parte decree under its inherent powers, as there is express provision in the Code of Civil Procedure and the Limitation Act about this matter.

18. I accordingly allow the revision application and set aside the order of the trial Court. Learned counsel for the Panchayat Samiti wishes to move an application under Section 5 of the Limitation Act. I accordingly remand the suit to the Court of Munsif, Kanore, and direct that the parties shall appear in that Court on 21st August, 1972. If on that date an application under Section 5 of the Limitation Act is moved by the defendant then the trial Court shall consider it in accordance with law. If no such application is moved on that date he shall dismiss the application for restoration.

19. The petitioner is entitled to recover the costs of this revision application from the defendant.


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